Section 16, sub-s. 2, of the Constitution stated that "every citizen" without distinction of sex
who had reached the age of 18 years, who was not disqualified by law and complied with the
provisions of the law relating to elections, should have the right to vote at an election for members
of Dáil Éireann éireann. By Article 12, s. 2, sub-s. 2, every such citizen is given a right to vote at an election
for President and, by Article 47, s. 3, he is given a right to vote at a referendum.

The Electoral (Amendment) Bill, 1983, as passed by both Houses of the National Parliament,
contained provisions which would entitle a British citizen to be registered in a constituency as a Dáil
elector if ordinarily resident in that constituency, and thus become entitled to vote at a Dáil election
in that constitutency. Pursuant to Article 26 of the Constitution the President of Ireland referred
the bill of 1983 to the Supreme Court for a decision on the question whether the bill, or any
provision or provisions thereof, was or were repugnant to the Constitution or to any provision
thereof. In pronouncing its decision on the question so referred, it was

Held by the Supreme Court, 1, that any repugnancy with the provisions of the Constitution
must be clearly established by the opponents of the Bill.

2. That, in declaring that all powers of government derive, under God, from "the people"whose right it is "to designate the rulers of the State" and, in final appeal, to "decide all questions of
national policy", the provisions of Article 6, s. 1, of the Constitution showed (with Articles 12 and
47) that the right to vote at elections for members of Dáil Éireann éireann conferred on every citizen by
Article 16 was a right which was restricted to citizens who formed part of the people of Ireland.

3. That, accordingly, the bill of 1983 was repugnant to the Constitution.

The Electoral (Amendment) Bill, 1983, was passed by both Houses of the
Oireachtas on the 14th December, 1983. On the 21st December, 1983, the
President of Ireland referred the bill to the Supreme Court pursuant to the
provisions of Article 26, s. 1, sub-s. 1, of the Constitution of Ireland, 1937, for"a decision on the question as to whether the said Bill or any provision or
provisions thereof is or are repugnant to the Constitution or to any provision
thereof." By the provisions of the bill the legislature sought to confer on a
British citizen who was ordinarily resident in a constituency in the State some of
the rights of a citizen, viz., a right to be registered as a Dáil elector in that
constituency so that, when registered, he would be entitled by s. 26, sub.-s. 1,
of the Electoral Act, 1963, to vote at a Dáil election in that constituency and, by
s. 51, sub.-s. 1, to vote at a presidential election and, by s. 70, sub.-s. 1, to vote
at a referendum. The Supreme Court assigned solicitor and counsel to oppose
the constitutionality of the bill.

Article 6, sub-s. 1, of the Constitution states:— "All powers of
government, legislative, executive and judicial, derive, under God, from the
people, whose right it is to designate the rulers of the State and, in final appeal,
to decide all questions of national policy, according to the requirements of the
common good."

Article 9 of the Constitution provides:—

"1. 1 On the coming into operation of this Constitution any person who
was a citizen of Saorstát Éireann éireann immediately before the coming into operation
of this Constitution shall become and be a citizen of Ireland.

2 The future acquisition and loss of Irish nationality and citizenship shall
be determined in accordance with law.

3 No person may be excluded from Irish nationality and citizenship by
reason of the sex of such person.

2. Fidelity to the nation and loyalty to the State are fundamental political
duties of all citizens."

The procedure by which an alien may acquire Irish citizenship is specified
in the naturalisation provisions of Part III of the Irish Nationality and
Citizenship Act, 1956.

Section 5, sub-s. 1, of the Electoral Act, 1963, stated:—

"A person shall be entitled to be registered as a Dáil elector in a
constituency if he has reached the age of eighteen years and he was, on the

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qualifying date— (a) a citizen of Ireland, and (b) ordinarily resident in that
constituency."

Section 26, sub-s. 1, of the Act of 1963 states:— "Subject to the subsequent
provisions of this section, every person whose name is on the register of Dáil
electors for the time being in force for a constituency, and no other person,
shall be entitled to vote at the poll at a Dáil election in that constituency."

Pursuant to Article 26, s. 2, sub-s. 1, of the Constitution the Supreme
Court (O'Higgins C.J., Finlay P., Henchy, Griffin and McCarthy JJ.) on the
17th and 18th January, 1984, heard arguments presented by the Attorney
General and by counsel assigned by the Court to oppose the constitutionality of
the bill.

The description "ordinarily resident" contained in s. 5, sub-s. 1, of the
Electoral Act, 1963, is not sufficiently precise to be used as the test in this
context, particularly when it is to be applied to British citizens who live in the
State. The description "British citizen" is defined in the bill by reference to the
British Nationality Act, 1981, and that definition, accordingly, may be altered
from time to time by amendments of the Act of 1981 made by the British
Parliament. [They referred to Levene v. Commissioners of Inland Revenue 1 [1928] A.C. 217.
; Commissioners of Inland Revenue v. Lysaght 2 [1928] A.C. 234.
; In re Norris 3 (1888) 4 T.L.R. 452.
; Cooper v.Cadwalader 4 (1904) 5 T.C. 101
and Macrae v. Macrae 5 [1949] P. 347.
]

Although there is a presumption that no provision of the bill is repugnant
to the Constitution, the matter must be tested in the light of all the provisions of
the Constitution and not merely by reference to the provisions of Article 16.
[They referred to The State (Browne) v. Feran 6 [1967] I.R. 147.
; McGee v. The Attorney
General 7 [1974] I.R. 284.
and The State (D.P.P.) v. Walsh 8 [1981] I.R. 412.
] In the preamble to the Constitution
it is stated that it is "the people of Eire" who "give to ourselves this
Constitution." Further, Article 6 expressly states that all powers of
government, legislative, executive and judicial derive, under god, from "the
people" whose right it is to designate the rulers of the State and to decide all
questions of national policy. The description "every citizen" in Article 16, s. 1,
sub-s. 2, of the Constitution is thus limited by the provisions of the preamble
and those of Article 6. [They referred to The State (Goertz) v. Minister for
Justice 9 [1948] I.R. 45
; Calvin's Case 10 (1608) 7 Co. Rep. 1a.
; Byrne v. Ireland 11 [1972] I.R. 241.
; The Criminal Law (Jurisdiction)
Bill, 1975 12 [1977] I.R. 129.
; M. v. An Bord Uchtála 13 [1975] I.R. 81.
and The State (Aherne) v. Cotter 14 [1982] I.R. 188.
]

Article 9 of the Constitution, which governs the question of citizenship,
imposes on citizens the duties of fidelity to the nation and loyalty to the State
and those are the persons who are given by the Constitution the right to vote at
Dáil elections.

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The fact that the right to vote is vested in a person by reason of his status as
a citizen does not preclude a similar right being conferred by statute on a person
who is not a citizen. There is nothing in Article 16 of the Constitution, or in the
other Articles thereof, which justifies an exclusion of British citizens resident in
the State from the category of persons entitled to vote at Dáil elections. The
only discrimination which is expressly prohibited is one formed "on the ground
of sex." The various references to citizens and to the people do not warrant that
exclusion.

The requirement that the elector must be "ordinarily resident" in his
constituency does not create any special difficulty for Irish nationals and should
not do so when applied to resident British citizens. The regulations contained
in the Registration of Electors and Juries Acts (Specification of Dates)
Regulations, 1963, as amended by the Registration of Electors (Amendment)
Regulations, 1977, are clear and practicable in their requirements. Leaving
aside, for the moment, the issue now in contention, it has not been the practice
to deny to aliens constitutional rights which are enjoyed by citizens. Citizens of
the United Kingdom already have rights and privileges similar to those enjoyed
by citizens of the State: see United Kingdom and Colonies (Irish Citizenship
Rights) Order, 1949, and s. 26 of the Irish Nationality and Citizenship Act,
1956. Despite the definition of "British citizen" by reference to the British
Nationality Act, 1981, control would still be exercised by the Oireachtas by
reason of its power to amend the Electoral Act, 1963. [They referred to the
judgment of McMahon J. in Draper v. The Attorney General 15 (see p. 277, infra).
; Norris v. The
Attorney General 16 (see p. 36, supra).
; The State (D.P.P.) v. Walsh 8 [1981] I.R. 412.
; Joyce v. Director of Public
Prosecutions 17 [1946] A.C. 347.
and The State (Aherne) v. Cotter. 14 [1982] I.R. 188.

Cur. adv. vult.

The decision of the Supreme Court was pronounced by one of the judges
of that court in accordance with the provisions of s. 2, sub.-s. 2, of Article 26 of
the Constitution.

O'Higgins C.J.

8th February 1984

On the 21st December, 1983, the President of Ireland referred the
Electoral (Amendment) Bill, 1983, to this Court under Article 26 of the
Constitution. The Bill, which contains two sections, is entitled "An Act to
confer on certain persons certain rights to vote and for that purpose to amend
section 5 of the Electoral Act, 1963." The entire of the effective provisions of
the Bill are contained in section 1. Section 2 is a provision for its short title,
construction and collective citation. Section 1 reads as follows:—

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"Section 5 of the Electoral Act, 1963, is hereby amended by the insertion
after subsection (1) of the following subsection:

'(1A)

(a) In addition to those entitled to be registered under subsection (1) of
this section, a person shall be entitled to be registered as a Dáil
elector in a constituency if he is a person who has reached the age of
eighteen years and who on the qualifying date—

(i) complied with the requirement of subsection (1)(b) of this
section, and

(ii) was a British citizen.

(b) In this subsection "a British citizen" means a person who under the
Act of the British Parliament entitled "The British Nationality Act
1981" is a British citizen.'"

Section 5, sub-s. 1, of the Electoral Act, 1963, as amended by s. 2 of the
Electoral (Amendment) Act, 1973, reads as follows:—

"(1) A person shall be entitled to be registered as a Dáil elector
in a constituency if he has reached the age of eighteen years and he
was, on the qualifying date—(a) a citizen of Ireland, and (b) ordinarily
resident in that constituency."

Section 51, sub-s. 1, of the Act of 1963 provides:— "Subject to the
subsequent provisions of this section, every person whose name is on the
register of Dáil electors for the time being in force for a constituency, and no
other person, shall be entitled to vote in that constituency at the poll at a
presidential election." The subsequent provisions referred to are provisions
dealing with the identification of the voter. Section 70, sub-s. 1, of the Act of
1963 provides:— "Subject to the subsequent provisions of this section, every
person whose name is on the register of Dáil electors for the time being in force
for a constituency, and no other person, shall be entitled to vote in that
constituency at the poll at a referendum." The subsequent provisions of s. 70 of
the Act of 1963 are again provisions dealing with the identification of the voter.

The Bill which has been referred to the Court amounts to a proposal that a
person who is a British citizen under the British Nationality Act, 1981, and is
ordinarily resident in a constituency and over the age of 18 years, shall have a
right to vote in an election of members of Dáil Éireann; éireann; at an election of the
President; and at a referendum, whether the subject of such referendum is a
proposal to amend the Constitution or a proposal to approve legislation
referred to referendum pursuant to Article 27 of the Constitution.

The question as to whether this Bill is repugnant to the Constitution
depends primarily on the interpretation of Article 16, s. 1, sub-s. 2, of the
Constitution and, secondly, on the application of that interpretion to Article
12, s. 2, sub-s. 2, and s. 3 of Article 47.

Article 16, s. 1, sub-s. 2, of the Constitution provides:—

"Every citizen without distinction of sex who has reached the age

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of eighteen years who is not disqualified by law and complies with the
provisions of the law relating to the election of members of Dáil
Éireann éireann, shall have the right to vote at an election for members of
Dáil Éireann éireann."

Article 12, s. 2, sub-s. 2, provides:—

"Every citizen who has the right to vote at an election for
members of Dáil Éireann éireann shall have the right to vote at an election for
President."

Article 47, s. 3, provides:—

"Every citizen who has the right to vote at an election for
members of Dáil Éireann éireann shall have the right to vote at a
Referendum."

The net effect of the arguments submitted by the opponents of the Bill is
that Article 16, s. 1, sub-s. 2, of the Constitution and, by analogous
interpretation, Article 12. s. 2, sub-s. 2, and Article 47, s. 3, should be
construed as not merely granting to every citizen a right to vote but as being a
comprehensive definition of the franchise, thus excluding from voting rights
any person who is not a citizen.

The net effect of the arguments submitted on behalf of the Attorney
General in support of the Bill is that these three Articles should be construed
together as providing for the basic right of citizens to vote, subject to not being
disqualified by law and to compliance with the law relating to elections. It was
further contended that the provision by the Constitution of this basic right for
citizens was not intended to prevent the granting by law of similar rights to
non-citizens, and that such was to be gathered from the absence of any words in
Article 16, s. 1, sub-s. 2, prohibiting the Oireachtas from so doing or excluding
non-citizens from voting.

In considering this Bill, the Court accepts the principles laid down by it in The Criminal Law (Jurisdiction) Bill, 1975 12 [1977] I.R. 129.
(and in the other references of bills
to this Court) to the effect that, where it is claimed that a bill is repugnant to the
Constitution, such repugnancy must be clearly established.

There does not appear to the Court to be any logical distinction between
the provisions of Article 16, s. 1, sub-s. 2, Article 12, s. 2, sub-s. 2, and Article
47, s. 3, which would admit of any difference in construction on this issue as to
whether these Articles are to be construed as a finite and complete
determination of the franchise or, alternatively, as permitting the extension of
the franchise by legislation.

The Court has also considered the provisions of the Constitution dealing
with eligibility for membership of Dáil Éireann éireann and eligibility for election to the
office of President. Article 16, s. 1, sub-s. 1, provides:— "Every citizen without
distinction of sex who has reached the age of eighteen years, and who is not
placed under disability or incapacity by this Constitution or by law, shall be
eligible for membership of Dáil Éireann éireann." Article 12, s. 4, sub-s. 1, provides:—

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"Every citizen who has reached his thirty-fifth year of age is eligible for election
to the office of President." Again it is difficult to see a logical distinction
between these provisions and the provisions of Article 16, s. 1, sub-s. 2, in
relation to the question as to whether they are to be construed as being finite
and complete or to be construed as the granting of a right only.

The issues raised by this reference, therefore, are as to whether not only
the right to vote in elections of Dáil Éireann éireann, of the President and on a
referendum but also the right to be eligible for membership of Dáil Éireann éireann and
for the office of President can be extended by legislation to persons other than
citizens.

The construction of Article 16, s. 1, sub-s. 2, must first be approached by a
consideration of other provisions contained in that Article and, further, of
course, by a consideration of other provisions contained in the Constitution.

These other provisions of that Article (1) prohibit the enactment of any
law placing a citizen under disability or incapacity for membership of Dáil
Éireann éireann on the grounds of sex, or disqualifying on the same grounds any citizen
from voting at an election for Dáil Éireann; éireann; (2) prohibit the exercise by any
voter of more than one vote at an election for Dáil Éireann; éireann; (3) provide for the
secrecy of the ballot; (4) provide for the ratio between members of Dáil
Éireann éireann and the population; (5) impose upon the Oireachtas an obligation to
revise constituencies at least once in every 12 years, with due regard to changes
in distribution of the population; (6) provide for elections to be on the system of
proportional representation by means of the single transferable vote; (7)
prohibit the enactment of any law providing for the number of members to be
returned for any constituency being less than three; (8) provide that a general
election shall take place not later than 30 days after the dissolution of Dáil
Éireann; éireann; (9) provide that the same Dáil Éireann éireann shall not continue for a longer
period than seven years from the date of its first meeting; (10) provide that
polling at every election for Dáil Éireann éireann shall, as far as practicable, take place
on the same day throughout the country; (11) impose an obligation to make
provision by law to enable the member of Dáil Éireann éireann who is the chairman
immediately before the dissolution to be deemed, without any actual election,
to be elected a member of Dáil Éireann éireann at the ensuing general election; and
(12) finally, by Article 16, s. 7, they provide that, subject to the foregoing
provisions, elections for membership of Dáil Éireann éireann, including the filling of
casual vacancies, shall be regulated in accordance with law.

These provisions indicate a total code for the holding of elections to Dáil
Éireann éireann, setting out the matters which would appear to be necessary other than
minor regulatory provisions. This code provides for the eligibility of
candidates; the persons entitled to vote; the limitation of one vote for each
voter; the standards for determining the number of members; the obligation to
revise constituencies; proportional representation, the single transferable vote
and a secret ballot as the method of election; a minimum of three members for

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each constituency; a limit in time within which general elections must take
place after a dissolution; the maximum term of a Dáil; a provision for the
timing of polling throughout the country; and an obligation to provide for the
automatic election of the chairman of the Dáil.

In contrast with this code of essential features of elections for Dáil
Éireann éireann, the matters which are left to be regulated by law would appear to be
(a) the disqualification of citizens from voting; (b) the provisions with which
citizens must comply in order to have the right to vote; (c) the fixing of the
number of members of Dáil Éireann éireann within the ratio laid down by the
Constitution; (d) the provision, subject to the minimum of three, of the
number of members for each constituency; (e) the fixing of the date of a general
election subject to a restriction as to the maximum period after the dissolution
of the Dáil; (f) the period during which the same Dáil may continue subject to
the constitutional maximum of seven years; and (g) the details of the
mandatory provision for the re-election of the chairman of Dáil Éireann éireann.

Viewed in this way, the entire provisions of Article 16 would appear to
form a constitutional code for the holding of an election to Dáil Éireann éireann,subject only to the statutory regulation of such election. Can, therefore, so
comprehensive an Article properly be construed as contemplating the
extension of the franchise to persons who are not citizens? If it can, then by an
analogous interpretation of Articles 16, s. 1, sub-s. 1, and 12, s. 4, sub-s. 1, it
would be constitutionally possible to enact a law permitting a non-citizen to be
elected President or to be elected a member of Dáil Éireann éireann. It is the view of
the Court that Article 16 of the Constitution, taken in its entirety, cannot be so
construed.

Support for this view is to be found in other provisions and in the general
scheme of the Constitution. Article 6 proclaims that all powers of government
derive under God from the people and, further, that it is the people's right to
designate the rulers of the State and, in final appeal, to decide all questions of
national policy. There can be little doubt that "the people" here referred to are
the people of Ireland by, and for, whom the Constitution was enacted. In short,
this Article proclaims that it is the Irish people who are the rulers of Ireland and
that from them, under God, all powers of government derive and that by them
the rulers are designated and national policy decided. It is not possible to
regard this Article as contemplating the sharing of such powers with persons
who do not come within the constitutional concept of the Irish people in Article
6.

In the scheme of the Constitution this right of the people to designate the
rulers of the State and to decide questions of national policy is carried into
effect in the Articles already mentioned (Articles 12, 16 and 47) which are the
provisions made for the election of the President, of the Dáil and for the
determination of referenda. Article 12, s. 2, sub-s. 1, provides that "The
President shall be elected by direct vote of the people" and Article 47, ss. 1 and

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2, refers to proposals being submitted by referendum "to the decision of the
people." In the view of the Court "the people" or, in the Irish text an pobal,referred to in these two Articles, are "the people" mentioned in Article 6 from
whom all powers derive and who have the right to decide all questions of
national policy. This is so notwithstanding the use of the word pobal in the Irish
text of other Articles of the Constitution in a sense or with a meaning more
equivalent to "public" or "general." In Article 16 the right is given not to the
people but to citizens. This, however, as already noted, is a comprehensive
Article providing for the franchise and dealing in detail with membership and
qualification of Dáil Éireann éireann and with the manner of election thereto. The
Article necessarily deals with voting rights in a corresponding detail and gives
such rights to citizens of a certain age who are not disqualified and who comply
with the relevant electoral law. Such detail is absent from both Article 12 and
Article 47. These Articles refer to the people as being the decisive authority
but, in relation to the right to vote, each of these Articles declares that right to
be exercisable by "every citizen who has the right to vote at an election for
members of Dáil Éireann éireann." In these Articles, therefore, there is an equation
for electoral and referendum purposes of "the people" with "citizens" who
have the right to vote at an election for Dáil Éireann éireann.

The most powerful argument against this interpretation of Article 16 and,
in particular, of Article 16, s. 1, sub-s. 2, and of the associated Articles is the
contention, strenuously submitted on behalf of the Attorney General, that
various other rights such as the freedom of association, the freedom of
conscience, inviolability of a dwelling and other similar rights are granted in the
Constitution to citizens, and the Courts have interpreted those provisions as
having the effect, at least in certain circumstances, of not excluding the
existence or the granting of similar or identical rights to persons who are not
citizens. It is the view of the Court that that argument fails by reason of the clear
distinction between the provisions of Article 16, Article 12 and Article 47,
which provide the mechanism by which the people may choose and control
their rulers and their legislators, and Articles such as Article 40 and Article 44,
which grant to individuals particular rights within society and in relation to the
organs of State.

For these reasons, the Court decides that the Bill is repugnant to the
Constitution and will so advise the President.

[The provisions of s. 1 of the Ninth Amendment of the Constitution Act, 1984, were duly
approved by the people at a referendum held (before its enactment as law) in accordance with
Articles 46 and 47 of the Constitution. Section 1 of the Act of 1984 substituted a new sub-section for
sub-section 2 of s. 1 of Article 16 of the Constitution. The new sub-section 2 states that all citizens,
and such other persons in the State as may be determined by law, without distinction of sex who

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have reached the age of 18 years who are not disqualified by law and comply with the provisions of
the law relating to the election of members of Dáil Éireann éireann, shall have the right to vote at an
election for members of Dáil Éireann éireann.]